A 15-year-old boy was charged with murder and spent almost a year in custody after Victoria police detectives used a process described by a judge as “corrupted” to gather evidence against him and disregarded information pointing to other suspects, a Guardian investigation has found.
The case then collapsed during a pre-trial hearing in which the judge said she was “incredulous” that the prosecution was pushing ahead with it despite flaws in the evidence used to identify the boy as the murderer. She described police conduct in investigating the case as “remarkable”. The murder charge was later withdrawn.
Murder victim Aguer Akech was 17 when he died at a Melbourne railway station in 2019. Although no motive was established, detectives suspected one possibility was that he may have been killed because he had previously been a police witness.
But some police officers involved in the investigation cannot be named because of a broad Victorian law preventing the identification of witnesses in cases that originate in the children’s court.
The case sheds new light on how Victoria police pursued youth offenders of African-Australian background and provides another extraordinary example, in the wake of the Lawyer X and Jason Roberts controversies, of the force failing to properly disclose evidence to an accused.
Fundamental flaws in the case
Aguer was fatally stabbed during a fight at Keilor Plains station three days before Christmas in 2019.
The 15-year-old accused, who cannot be named for legal reasons but who Guardian Australia will give the pseudonym James, was charged with murder in May 2020. He was released almost a year later after his lawyers revealed a series of fundamental flaws in the case. The prosecution was discontinued in mid-2021.
Many of the failings in the homicide investigation were only uncovered after police had spent months withholding thousands of documents from the boy’s lawyers on the grounds that they were too sensitive to be provided.
Those documents showed that detectives used flawed identification evidence in the case, while at the same time failing to investigate other suspects who had been nominated.
Detectives suspected one potential motive for Aguer’s death was the fact that he gave evidence to police against other youths who he alleged were his co-offenders in another crime committed only months before he was stabbed.
His father, Lual Akech, feels Aguer was failed twice by the force: first, as someone who trusted he would be safe after providing information to police, and then as the victim of an unsolved crime.
“There’s no justice,” he told Guardian Australia.
Lual and some people familiar with James’s case believe the justice system failed both boys in part because of their race: the pair were South Sudanese-Australian.
While the race of the boys was not raised as a factor in the case in the hundreds of pages of documents seen by Guardian Australia, lawyer and researcher Dr Tamar Hopkins said Victoria police had a history of treating people of African heritage differently.
“Police are far more willing to distrust African young people than anyone else, and bring cases against them where there’s very little evidence to support the actual charge,” she said.
Victoria police rejected any suggestion that race influenced their investigation.
The case also represents another example of Victoria police failing in its obligations under a legal process known as disclosure, which requires them to provide the accused with all relevant information they hold in a reasonable timeframe so it can be used in defending the charges.
The force has been made to reckon with its handling of such matters as part of the Lawyer X and Jason Roberts controversies.
In this instance, the force also failed to declare it had information nominating other suspects in the case.
Victoria police said it treated disclosure matters with the “utmost importance” and ensured all employees complied with their legal obligations.
Other suspects not pursued
Court documents and transcripts reviewed by Guardian Australia show that seven other boys were nominated to the homicide squad as suspects, including boys identified by police from CCTV of the fight which involved about 30 youths.
These suspects included a boy who a witness alleges threatened to kill Aguer at the train station the night of the murder, and who was allegedly seen by another witness holding a knife. Police were told by another witness that the boy had bragged about getting away with murder on social media after the stabbing death.
The DNA of another suspect nominated to police had been found on a car which was linked to the murder.
Detectives who were considered by police to be experts in identifying youth offenders from the north-west also said that CCTV of the crime scene that the homicide squad believed showed James actually showed two different boys.
The lead investigator in the case later told the supreme court under cross examination that these suspects were either not considered or eliminated. In some instances, police had no information that evidence such as the suspect bragging on social media about murdering James had been investigated at all, he told the court.
Police have not found the murder weapon, there was no forensic evidence linking James to the crime, and detectives had no witnesses who had said they had seen James stab Aguer, or even holding a knife, the court heard.
The police case essentially rested on two points: that CCTV footage of the crime showed what police said it did, and that the person in the footage was James.
But Justice Elizabeth Hollingworth, who presided over James’ pre-trial court hearings, said police had almost no evidence to prove these points, despite the prosecutor earlier claiming to the court that they did.
“I am just sitting here incredulous, I … can’t think when I’ve had a case like this,” Hollingworth said.
“I am incredulous that this is proceeding quite frankly … we haven’t had a single person identify [James as being] there.
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“You might remember that I said innocently and quite naively [at an earlier hearing] ‘are we going to get to some witnesses who are going to identify James?’ and I was told CCTV footage would reveal it and of course the CCTV footage is fraught with ambiguity about where things happened and who it might have been.”
Hollingworth was commenting at the end of s198B hearings, a court process in which lawyers for an accused can examine prosecution witnesses at a separate hearing before a full criminal trial begins.
Police relied on statements from seven different officers to identify James from CCTV.
While footage of the fight was, as the judge alluded to, of poor quality, clearer images had been taken from other cameras at the station of boys who police suspected were involved in the fight, including James.
Police are required to follow a strict process for taking identity statements that protects the integrity of the evidence.
Under this process, they must circulate an image or footage without additional information that could reveal who a suspect is. If someone believes they can identify the person, they prepare a statement.
The process is designed to preserve the integrity of witnesses.
The process was not followed in relation to seven statements provided by police who claimed to have been able to identify James from the footage, court documents show.
The court heard that some police made a critical omission from the identification statements they provided. These police said they had independently identified James in the CCTV footage, but neglected to mention they had already been told James was a suspect.
“To have gone through the process that they went through of not … [showing witnesses] photo boards, not asking any of the witnesses for any identification, and to have gone through – and I use the word corrupted advisably – it’s quite a corrupted process of obtaining police statements, is remarkable in my experience, quite remarkable,” Hollingworth said.
“Quite frankly – every time [the officer in charge of the investigation] comes up with an answer and I think it can’t get worse, it has. It’s an extraordinary prosecution.
“I use the word remarkable and extraordinary advisably. I can’t think of when I have seen a prosecution that has proceeded in this manner.”
Several of these officers who took part in this “corrupted” process previously dealt with James as part of Operation Wayward, a youth crime taskforce focused on Melbourne’s north-west which championed “proactive policing”.
Documents seen by Guardian Australia show that homicide squad officers relied heavily on intelligence gathered by the taskforce as part of their investigation.
None of the officers involved in the case who appeared in court as witnesses can be named because of a section of the Children Youth and Families Act that restricts the publication of “any particulars likely to lead to the identification of a witness in the proceeding” without the permission of the president of the court or a magistrate.
Q&A
Why can’t the Guardian name police witnesses in this case?
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Victorian law contains strict provisions designed to protect young people who are involved in children’s court proceedings.
The Children Youth and Families Act makes it an offence to publish any “particulars” likely to lead to the identification of a child or witness to a proceeding in the children’s court, or arising from a proceeding in that court.
But, in the case of Aguer Akech, that law also protects the identity of police officers involved in a prosecution described by an “incredulous” supreme court judge as “extraordinary”.
Because the case originated in the children’s court, it means the officers who were cross-examined as prosecution witnesses during pre-trial hearings in the supreme court cannot be named.
This is despite seven of those officers having serious questions raised about their evidence by lawyers for the accused in the case, and the judge in the matter, Justice Elizabeth Hollingworth, agreeing that the police had engaged in a flawed identification process.
The identity of children’s court witnesses, and the location of the court itself, is protected under section 534 of the act.
While this prohibition is understandable in relation to some adult witnesses, such as family members of youth offenders, the risk that naming a police officer would in turn lead to the identification of a child is likely minimal.
Any breach of that section carries a maximum penalty of two years’ prison or an almost $20,000 fine for individuals, and an almost $100,000 fine for body corporates.
Furthermore, the Victorian Open Courts Act, which is designed to regulate what information is available in the state’s court system, expressly states that it does not apply to this section, making applications to challenge it difficult.
Permission can be granted by the president of the children’s court or a magistrate to lift the prohibitions, but in order for a magistrate to do so they must be satisfied that the circumstances “giving rise to the request” are an emergency, and that publication is necessary for the safety of a child or other party to the proceeding, or to any other person in the community.
Victoria police said it was limited in what it could specifically say in relation to the case as the homicide squad investigation remained “active and ongoing”.
“Victoria police completely refutes any allegation that this investigation was improperly conducted. It was a difficult and complex matter, and one we are still committed to resolving for the victim’s family,” a spokesperson said.
“It is certainly not correct to suggest that the cultural background of the victim had any impact on the work of, or the level of commitment from, homicide squad investigators.
“The squad is staffed with dedicated and experienced detectives who are fully committed to providing justice for families impacted by these violent crimes. Every victim is afforded a full and thorough investigation regardless of their background and circumstances.”
Regarding disclosure, the force said “advice was sought on a number of occasions from the [Victorian government solicitor’s office] and a significant amount of time was required to undertake redaction of a large amount of material”.
The Office of Public Prosecutions said that during the s198B hearings “evidence was adduced which revealed a number of important deficiencies in the identification evidence”.
“Following the s 198B hearings, the case was thoroughly and expeditiously reviewed again. As a consequence of that review, the Director of Public Prosecutions formed the view that there were not reasonable prospects of conviction,” an OPP spokesperson said.
“Accordingly, the prosecution was discontinued. The basis of the decision to discontinue the prosecution, including deficiencies with the identification evidence, was communicated to Victoria police.”
The spokesperson said that disclosure obligations were shared between investigators and prosecutors, but that generally “the role each party plays in assessing whether all relevant material has been disclosed will depend on who has possession of the information.”
Do you know more? Email nino.bucci@theguardian.com